TRANSFORMING THE INFORMATION SUPERHIGHWAY INTO A PRIVATE TOLL ROAD: THE CASE AGAINST CLOSED ACCESS BROADBAND INTERNET SYSTEMS

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1 TRANSFORMING THE INFORMATION SUPERHIGHWAY INTO A PRIVATE TOLL ROAD: THE CASE AGAINST CLOSED ACCESS BROADBAND INTERNET SYSTEMS SEPTEMBER 1999

2 TRANSFORMING THE INFORMATION SUPERHIGHWAY INTO A PRIVATE TOLL ROAD ISSUE BRIEF THE THREAT OF MONOPOLY POWER AT&T has acquired cable companies and cable-based broadband Internet service providers (ISPs) and entered exclusive or preferential deals with related companies. The result is an unprecedented consolidation and control over the cable TV industry. The central consumer concern is that AT&T is pursuing policies that will not only preserve the cable TV video monopoly, but extend the cable model of a closed, proprietary network to broadband Internet services at the very moment that new technologies could free consumers from what the Department of Justice has called one of the nation s most durable and powerful monopolies. Recognizing that federal authorities have not been vigorous in enforcing their own rules to promote and protect competition in recent years, local franchising authorities, like the City of Portland (Oregon) and Broward County (FL), have ordered AT&T to provide nondiscriminatory access to broadband Internet services. AT&T sued Portland, but lost the first round in Federal Court. At the same time that AT&T has been fighting to operate cable-based broadband networks on a closed, private basis, it has been arguing that high bandwidth telephone facilities (digital subscriber line or xdsl facilities) must be operated on an open basis. Needless to say, the local telephone companies have cried foul and are seeking to have their high-speed lane on the information superhighway closed, too. If AT&T manages to close its broadband pipe, the inevitable result will be the elimination of open access to high bandwidth services on the telephone network as well. Access to the broadband Internet will have a tremendous impact on economic, social and political life in the 21 st century. Two private toll lanes cannot replace an open superhighway. Two competitors are not enough to ensure competition. Two preferred service providers are not enough to ensure the free flow of ideas in the information age. CLOSING THE BROADBAND INTERNET THROUGH PRIVATE REGULATION IMPOSED BY CORPORATE INTERESTS Today, consumers can dial up the Internet over the local phone lines. There is no bundling of connectivity (telephone service) and content (Internet service). Any Internet service provider can advertise a phone number and be reached by a local phone call. It is that unfettered access that has been the seedbed of Internet creativity. It is that access that is threatened by the closed access model that the cable industry is pursuing, and of which the Bell monopolies are so enamored. The cable TV model, based on private carriage, is quite different. Closed system operators choose who has access. Unaffiliated suppliers of content have no way to sell directly to the public. They must negotiate with the owner of the transmission system who sets the terms and conditions of interconnection and can keep them off their networks. i

3 Cities like Portland are not seeking to impose full common carriage obligations on broadband Internet services. Rather, they are seeking a policy of non-discriminatory access, in which cable companies would be able to set reasonable terms and conditions in private negotiations, as long as the same terms and conditions they grant to their own affiliates are available to non-affiliated Internet service providers. The approach has its grounding in the idea of essential facilities from antitrust law. The purpose of open access is to ensure that consumers have a choice of suppliers of programming by ensuring that competing programmers have an opportunity to access the transmission network. Programs win or lose in the marketplace based on their merits as programs, not based on their preferential access to a proprietary, essential input. Closed access denies competing ISPs access to an essential resource cable transmission which is necessary to compete in the content market, and which cannot be reasonably reproduced by competitors. Open access prevents AT&T from gaining an unfair advantage in the ISP market for its and RoadRunner. PREFERENTIAL TREATMENT OF PROPRIETARY PROGRAMMING AT&T s claim that it will keep its cable network open by providing one click access to the Internet is utterly deceptive. In fact, AT&T s imposes significant restrictions on access, as described in the following Table. ANTICOMPETITIVE PRACTICES DIRECTED AT UNAFFILIATED, HIGH SPEED INTERNET SERVICE PROVIDERS Practice Service CABLE TELCO Denial of exclusive Withholding availability; delayed provisioning Degradation of Quality Selective speed control; preferential local caching Overloading switches; restricted cross-connect Price Discrimination Consumers pay twice Wholesale retail Steering Boot screen bias List bias; omission of alternatives Abuse of information Detailed consumption data to target Advanced notice of availability; abuse of information for customer win-back Bundling Access and content; cable and Internet Access and content; cable and telephone AT&T is able to directly discriminate against unaffiliated ISPs in the price and quality of service. Certain services are precluded from being sold. Consumers must pay twice for access to unaffiliated ISPs, once to and once to the ISP. Proprietary control of the network allows the closed system operator to control the boot screen that the subscriber sees, which creates the potential to steer customers. The detailed control of the network confers an insurmountable information advantage on the system operator. As a result of these restrictive policies, the offer of competing commercial services is being retarded and consumers are losing crucial alternatives. ii

4 One of the first restrictions placed on Internet activity by the cable owners was to limit the amount of time that streamed video could be downloaded by customers. While AT&T invokes the need to manage its network as a justification for this restriction, the commercial rationale is clear. Broadband Internet services could compete against cable TV offerings by streaming full video programming to consumers. The private regulation driven by corporate interests imposes restrictions to ensure that broadband Internet services will not undermine the cable TV monopoly. TELEPHONE COMPANY EFFORTS TO CLOSE THEIR NETWORK FOR ADVANCED SERVICES While AT&T fights to prevent open access requirements from being imposed on its broadband network, the telephone companies have been fighting just as hard to frustrate the open access requirements to which they are subject. Testimony at the Federal Communications Commission and before state public utility commissions, for example, indicates that the local telephone companies have used many of the same discriminatory tools against unaffiliated ISPs that use. Ironically, when the FCC offered the local phone companies a regulatory alternative roughly equivalent to the non-discrimination requirement imposed by the City of Portland, none of them availed themselves of this option. In spite of this record, the local phone companies have sought to remove the open access requirements placed on their advanced services by the Telecommunications Act of They want a closed pipe, too. All of these cable and telco practices are anticompetitive and will damage the free flow of services on the Internet. In neither case should they be allowed. The abusive treatment of unaffiliated ISPs that will occur in a market populated with closed systems will undermine the fundamental nature of the Internet. Neither cable TV nor telephone companies should be allowed to engage in this type of discrimination. In federal and state proceedings CFA and its local affiliates have opposed the efforts of the local telephone companies to deny open access to their networks, just as we are opposing the efforts of AT&T in federal and local proceedings to extend closed access to cable-based broadband Internet. DOES REQUIRING OPEN ACCESS MEAN NO BROADBAND NETWORK? Certainly, two open pipes are better than two closed pipes. However, AT&T and the telephone companies claim that if open access requirements are imposed, no broadband pipes will be built. They argue that they will not build the broadband network if they must share access with other service providers, because open access makes no business sense. A surprisingly broad array of financial analysts disagrees. The broadband genie is out of the bottle. Market and technological dynamics will compel both the cable and the telephone companies to deploy the technologies in commercially profitable volumes targeted to the markets for which they are suited, whether or not their networks are open. Because AT&T has paid a large premium above the value of simple cable systems it must generate new revenues or its stock value will be sharply diluted. It cannot concede the field to other technologies and try to make its $100 billion investment in cable companies pay off on the basis of cable service alone. iii

5 The local phone companies cannot sit on their hands and allow their networks to become second rate while cable and other technologies develop and market broadband services. Both the telephone and the cable industries have identified the same, high-value, highvolume market segment as the key to entry into the multi-service broadband market. Whoever captures these consumers, the early adopters who are most likely to try and use the new technologies, will gain an invaluable advantage. The companies simply cannot risk losing them. The most important sources of revenue on the broadband Internet are targeted advertising and online commerce that require interactive technology. Not only do the financial analysts believe it would be economically viable to deploy broadband as an open network, in some respects they believe it would be better for the public and the industry because open access could stimulate more rapid deployment of broadband services. With more content providers developing and marketing products, consumers adopt the new services more quickly. Cable companies can negotiate for a larger share of more types of revenues. Intermediate technologies fill important market niches and get affordable service to consumers more quickly when equipment can be developed for both networks. THE CABLE TV MODEL A consumer analysis of AT&T s acquisition of cable TV networks and its Internet business model must start from a simple point about 15 years ago. At that time, the rules that govern cable TV were changed to end rate regulation and to allow cable companies to operate their systems as closed, private networks. How have consumers fared since then? For most consumers, the result is as evident as the monthly cable bill. Consumers routinely face high bills, poor service quality, and have no real alternative to turn to. Head-to-head competition between cable companies is virtually non-existent. Cable s dominance as the multichannel medium is overwhelming. Its penetration is over eight times as high as the next multichannel technology, satellite. Its market share in broadband Internet service is even higher. The same few firms that dominate cable TV distribution also dominate production of programming. The companies involved in the AT&T deals dominate both distribution and programming. The only two widely available cable-based broadband Internet programming and RoadRunner are joined in an AT&T/MediaOne merger When both distribution and programming are owned by the same companies, there is no incentive to bargain at arms length to drive down the price of programming. The dominant firms control enough of the market to exercise price leadership. They do not have to fear competitive programming since their control of viewers enables them to frustrate entry. They can increase their overall profits by increasing programming prices, since they reap rewards from sales to both integrated and non-integrated distributors. The most direct manifestation of the consumer complaint against the monopoly, closed-access cable model is in the prices charged to consumers. Cable companies have used their market power to drive prices up faster than virtually every other consumer commodity in the past decade and a half. iv

6 During the periods when cable prices were not regulated they have increased at about three times the rate of inflation. For all the talk about changes in technology and more aggressive efforts to stimulate competition in the Telecommunications Act of 1996, cable rate increases since its passage have been greater in real terms than at any time in the history of the industry. Not only have prices been increased, but the industry has also restructured its revenue stream to maximize the leverage afforded by its market power. It has engaged in bundling and price discrimination, driving consumers to buy bigger and bigger packages of programs at higher prices. These anticonsumer pricing practices have already begun to spread to closed cablebased Internet services. As an example, MediaOne charges $78 per month to have all tiers of cable TV and Internet service. If a consumer tries to lower the cable portion of the bill by about $20 by dropping a tier of cable TV service, MediaOne will raise Internet service price by rises by $10, without any improvement in the service. MediaOne offers to add telephone service to a big communications bundle for about $32, but the current local Bell Atlantic phone bill is only about $30. MediaOne hints that after the proposed merger with AT&T, bundling all services into one package, including longdistance, would provide additional discounts. But if the consumer does not want all the cable programming, he or she is not much better off. The tease of lower prices cannot be realized unless consumers bundle many services together with one provider, adding up a combined monthly communications bill of well over $100. PROMISES, PROMISES: THE REPEATED FAILURE OF CROSS-TECHNOLOGY COMPETITION UNDER THE COMMUNICATIONS ACT In order to avoid the harsh light that market structure analysis and the experience in the cable TV industry sheds on AT&T s accumulation of market power in the cable-based broadband industry, AT&T argues that future competition in that market will not allow it to abuse the public. AT&T is telling regulators to ignore the market as it actually is, ignore the highly concentrated cable market that will result from its proposed deals, ignore past experience, and project how the market will operate when new competition emerges. Unfortunately, the historical experience has proven otherwise and the likely path of future development is no more promising than past failures. Each time that the Congress has attempted to deal with cable TV deregulation in 1984, re-regulation in 1992 and deregulation a second time in 1996 one of the central goals and claims of the legislation was to foster competition in the industry. In every case, the claims and promises proved wrong. OPEN ACCESS IS THE RIGHT PUBLIC POLICY Even if two distribution technologies could share the market, allowing each distribution network to chose a favorite service provider would not ensure effective commercial competition. Such a policy also raises major concerns about the ability of the network to support free expression. Because each technology insists that distribution and content must be linked, we would end up with a choice of a very few, private toll roads on which affiliated information service providers get the best treatment. Under such a model, we would lose the Internet as we know it today a wide-open forum for communication and commerce. v

7 Almost three-quarters of a century of public policy toward the mass media have been predicated on the recognition of the uniquely powerful impact of that media. Broadband Internet services take the role of the broadcast media to a higher level, adding interactivity to immense reach, real-time immediacy, and visual impact. Because it is such a potent method of information dissemination, economic control over mass media can result in excessive political power. Because the economic interests of media owners influence their advertising and programming choices, private interests inevitably attempt to dictate access to political information. Proprietary, integrated content simply will not produce the creativity and the openness that have typified the Internet. Empirical evidence clearly suggests that concentration in media markets has a negative effect on diversity. Reliance on economic forces has produced considerable evidence that the market will reduce public interest and culturally diverse programming. News and public affairs programming are particularly vulnerable to economic pressures, resulting in a reduction in the quantity and quality of such programming. The narrow competition between a very small number of delivery mechanisms and their affiliate-favored programmers will dramatically reduce the number of ISPs, restrict content and limit consumer choice. The reliance on a small number of competing closed networks will result in a failure of ubiquitous universal service. Proprietary networks tend to restrict access to their standards to preserve control. Closed access will slow deployment because of less availability of programming and marketing efforts by ISPs, but it also prevents intermediate technologies that could fill market needs. CONCLUSION An open access policy for cable and telephone broadband services alike -- would simply ensure that consumers would be able to choose from a variety of Internet Service and content providers as they currently can. Open access preserves competition within the Internet marketplace. If AT&T wins the "closed access" provision it is seeking, consumers will be faced with higher prices, lower quality of service, and fewer choices just as they have with monopoly cable services. In addition, a closed broadband policy would seriously undermine the financial prospects for many of the country s burgeoning high tech companies and entrepreneurs. Despite AT&T s bluster, this issue is not about regulation of the Internet. The issue is about whether a private monopolist may regulate access to the broadband Internet to further its own private interests, or whether the local government entity that grants a franchise may promote the public interest by guaranteeing open access to the broadband Internet. The closed, private network model of the cable industry, so coveted by the local phone companies, poses the greatest threat to the liberating influence of the Internet. Combined with the highly concentrated and vertically integrated market structure that AT&T is seeking to impose on the industry through its mergers and related deals, prospects for consumers turn significantly negative as they are faced with the threat of abuse of AT&T s substantial market power and its attendant consequences. If AT&T wins, the local phone companies will surely win, too, and close their networks to non-affiliated content and providers. In other words, a winwin for AT&T and the local phone companies is a lose-lose for consumers. vi

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